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WSJ Flip-Flops On EPA After Supreme Court Case Came Out Pro-Business

TheWall Street Journal has a long record of hostility toward the regulatory authority of the Environmental Protection Agency (EPA), but its editorial board recently praised the Supreme Court's near-unanimous decision upholding EPA action in Decker v. Northwest Environmental Defense Center.

In Decker[1], environmental groups challenged the EPA's interpretation of its rules that regulate the proper permitting of storm water runoff, pursuant to the Clean Water Act. According to the EPA, its regulations had never intended to require logging companies to secure federal permits for the runoff from logging roads. While the case was under consideration by the Supreme Court, the EPA issued new regulations[2] re-confirming this interpretation and exemption practice. The Court decided[3]in a 7-1 decision, with conservative Justice Antonin Scalia dissenting, that well-established administrative law required deference to the EPA's position.

In an editorial titled "Supreme Liberal Washout: The Justices unite against the trial bar and overzealous greens" the WSJ editorial board championed[4] the decision and the EPA. This is a stark change for the WSJ, which is typically[5]incessantly[6]defamatory[7] toward the EPA's actions and legitimacy as "a politically driven bureaucracy that wants to impose by illegal diktat"[8] environmental law. In January, the WSJ editorial board informed[9] its readers that the EPA's interpretation of its authority in regulating storm water was so bad that "[i]f Washington gave awards for creative regulatory overreach, the Environmental Protection Agency would sweep the field." Nevertheless, in the Decker case, the WSJ applauded the EPA's judgment and the Court's opinion[1].

Justice Anthony Kennedy wrote for the Court and observed that the decision in Decker was not a difficult one. Out of respect for their assumed technical expertise, administrative agencies have long been afforded deference for their regulatory actions and interpretations of their promulgated rules. As Kennedy noted: "[i]t is well established that an agency's interpretation need not be the only possible reading of a regulation-or even the best one-to prevail. When an agency interprets its own regulation, the Court, as a general rule, defers to it 'unless that interpretation is "plainly erroneous or inconsistent with the regulation."'" The WSJ does not usually advocate for this sort of respect. Even more surprising than its approval of this affirmance of the EPA's expertise, however, is the fact that the WSJ conspicuously ignored the striking dissent of Justice Scalia.

Writing for himself "in a long and slashing dissent[3]," Justice Scalia advocated[1] for overturning decades of precedent that had led the Court to defer to the EPA, declaring "enough is enough." According to Scalia, the Court should have been the final arbiter of the rules in question because the EPA's interpretation was not the "natural one." Although no one else joined Scalia's dissent - presumably in light of the clear precedent to the contrary - conservative Chief Justice John Roberts (joined by Justice Samuel Alito) specifically flagged Scalia's concerns for the future: "[t]he bar is now aware that there is some interest in reconsidering those cases, and has available to it a concise statement of the arguments on one side of the issue. I would await a case in which the issue is properly raised and argued."

Conservative legal experts[10] are already highlighting the dissent as a way to rein in "the vast reach[11]" of the regulatory apparatus. For an editorial board that recently declared[12] "the EPA has become less a regulator following the law and more an ideological vanguard that will push its limits-to-growth agenda as long and as far as the courts and Congress allow[,]" it is curious that the WSJ didn't take Justice Scalia's bait, or even acknowledge it at all.